Gurumayum Shyamkanhai Sharma v. State of Manipur and Anr.
2005-01-28
M.B.K.SINGH
body2005
DigiLaw.ai
This Writ petition has been filed praying for directing the respondents for retrospective regularization of the services of the petitioners w.e.f. the dates of their initial ad hoc appointments. 2. I have heard Mr.N.Brojendro, learned counsel appearing on behalf of the petitioners and Mr.Asok Potsangbam, learned Advocate General, Manipur assisted by Mr. Suresh Sarangthem, appearing on behalf of the respondents. 3. Materials before the Court are perused. The petitioners were appointed as Section Officers in the Engineering Department on ad hoc basis during the year, 1979-80 under separate appointment orders issued by the Director of Education (S),Govt. of Manipur and their terms of ad hoc appointments were extended from time to time upto the end of February,1992 vide order dated 24.12.81(Annexure 5 to the writ petition). By an order dated 15.2.1987 issued by the Director of Education(S),Govt. of Manipur(Annexure-A/6 to the writ petition), the petitioners were appointed as Section Officers on the recommendation of the DPC w.e.f. the dates of joining their duties until further orders. Thereafter, by an order No.15/5/81-W dated 30.4.82 issued by the Govt.of Manipur, the Engineering Cell Education was merged with Public Works Department, Manipur(Annexure-7 to the writ petition). 4. According to the petitioners, at the time when they were appointed on ad hoc basis, they were all qualified for appointment as Section Officers Grade-I on regular basis according to rules and they had been serving as Section officers since the dates of their respective initial ad hoc appointment without any break till they were regularly appointed in the 1982 and as such their case falls under the proposition (B) made by the Apex Court in direct recruits Class-II Engineering Officers' Association & Ors. v. State of Maharastra AIR 1990 SC 1607 . The learned counsel for the petitioners also draws my attention to the decision of the Apex Court in case of Keshav Deo and Anr. v. State of U.P. & Ors AIR 1999 SC 44 . 5. In the above referred direct recruits case, the Supreme Court held in proposition (A) that once an incumbent is appointed to a post, according to rules, his seniority is to be counted from the date of his appointment and not according to the date of his confirmation.
v. State of U.P. & Ors AIR 1999 SC 44 . 5. In the above referred direct recruits case, the Supreme Court held in proposition (A) that once an incumbent is appointed to a post, according to rules, his seniority is to be counted from the date of his appointment and not according to the date of his confirmation. The corollary to the above proposition provides that when initial appointment is only on ad hoc and not according to rules and made as stop-gap arrangement, the officiation in such post cannot be taken into account for considering seniority. Whereas in proposition (B) it was held that if the initial appointment is not made by following the procedures laid down by the rules, but the appointee remains continuously in the post uninterruptedly till regularization of his service in accordance with rules, the period of officiating service will be counted. 6. Now, the point to be determined is which of the two propositions- either corollary of the proposition (A) or the proposition (B) of the said direct recruits case will be applicable in the present case. 7. It is well settled principles of law that no appointment can be made in deviation of or departure from procedures laid down in the relevant Recruitment Rules. The Supreme Court in R.N.Nanjundappa -v- T.Thimmiah (1972)I SCC 409 at para 26 held, “ if the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non- compliance with the procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such proposition would be to introduce new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.” Similarly is the view of the Supreme Court in B.N. Nagarajan -V- State of Karnataka and Ors, (1979)4 SCC 507 wherein it was held that the procedure for appointment as contained in rules framed under Art.309 of the Constitution of India must be complied with. The above said principle has been followed in a series of decisions of the Supreme Court. 8.
The above said principle has been followed in a series of decisions of the Supreme Court. 8. In Suraj Parkash Gupta & Ors-v- State of Jammu & Kashmir & Ors., (2000)7 SCC 561 the Supreme Court observed at para 28, “The decision of this Court have recently been requiring strict conformity with the Recruitment Rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental rules of recruitment.” It was further observed at para 29, “ similarly in State of Orissa v. Sukanti Mohapatra (1983) 2 SCC 486 it was held that though the power of relaxation stated in the Rules was in regard to” any of the provisions of the rules,” this did not permit relaxation of the rule of direct recruitment without consulting the Commission and the entire ad hoc service of a direct recruit could not be treated as regular service.” Similarly in M.A. Haque (Dr.) v. Union of India (1983) 2 SCC 213 it was held that for direct recruitment, the rules relating to recruitment through the Public Service Commission could not be relaxed. In Jammu & Kashmir Public Service Commission V- Dr. Narinder Mohan (1994)2 SCC 630 it was held that the provisions of the J.& K. Medical Recruitment Rules could not be relaxed for direct recruitment. The back door direct recruitment, could not be permitted.(See also Arun Dhati Ajit Pargaonkar(Dr) v. State of Maharastra, (1984) Supp.(3) SCC 380 ) In Surinder Singh Jamwal (Dr.) v. State of J&K (1996)9 SCC 619 this Court directed the direct recruits to go before the Public Service Commission.” 9. In V.P. Shrivastava & Ors. v. State of M.P. & Ors. (1996) 7 SCC 759 the Apex Court relying on the direct recruits case observed in para 10 as follows: “(10) We are not concerned with the other propositions laid down by this Court in the present case. In the case in hand the initial appointment of the respondents on promotion not having been made following the procedure laid down by the Recruitment Rules of 1965 and even though they are continuing in the post uninterruptedly but the Public Service Commission having not approved their appointments as yet, proposition B above, the appellants-direct recruits will have no application. Consequently applying proposition A above, the appellants-direct recruits must be held senior to the respondents-private respondents- ad hoc promotees.
Consequently applying proposition A above, the appellants-direct recruits must be held senior to the respondents-private respondents- ad hoc promotees. The Tribunal obviously erred in law in not following the aforesaid authoritative pronouncement of this Court for determination of the inter se seniority between direct recruits and promotees.” 10. Keeping in view the above said well settled principles of law, the present case is to be disposed of. In the present case the admitted position is that the initial ad hoc appointments of the petitioners were made without following the relevant Recruitment Rules and also without approval of the concerned. It is to be noted that at the relevant time, the appointment to the post of Section Officer was within the purview of Manipur Service Commission with regard to the said appointment as well be evident from the rules of 1976 which was holding the field. That rule is known as “Public Works Department Manipur Section Officer Grade-I(Civil/Mechanic)Recruitment Rules,1976.” I am of the opinion that the present case is squarely covered by the corollary of the proposition (A) of the direct recruits case. Accordingly, the petitioners are not entitled to retrospective regularization from the dates of their respective ad hoc appointments. It is also to be noted that in case such a retrospective regularization is to be allowed as prayed for, interest of many other employees in the cadre, who are not parties in the case, regarding their seniority and other conditions of service may be affected adversely. 11. In the result, this Writ Petition is rejected.